Supreme Court Rules Title VII Prohibits LGBTQ Discrimination
|
06/15/2020
|
By: Teresa Shulda
|
The
Civil
Rights
Act
of
1964,
which
includes
Title
VII,
prohibits
employment
discrimination
against
employees
because
of
race,
color,
national
origin,
religion,
and
sex.
Today,
the
Supreme
Court
issued
its
long-awaited
decision
in
a
trio
of
cases
that
tested
the
question
of
whether
Title
VII’s
existing
ban
on
discrimination
“because
of…
sex”
includes
discrimination
because
an
employee
is
gay
or
transgender.
A
six-justice
majority
of
the
Court
ruled
that
an
employer
indeed
violates
the
law
when
it
impermissibly
considers
an
employee’s
LGBTQ
status
in
making
employment
decisions.
In
the
cases
at
issue,
the
Court
heard
three
similar
fact
patterns,
representing
a
split
among
the
federal
appellate
courts.
In
the
title
case,
Bostock
v.
Clayton
County,
Georgia,
a
long-time
gay
male
county
employee
alleged
that
he
was
terminated
for
conduct
“unbecoming”
of
a
county
employee
shortly
after
he
joined
a
gay
recreational
softball
league.
In
that
case,
the
Eleventh
Circuit
Court
of
Appeals,
covering
Georgia,
Florida,
and
Alabama,
ruled
that
Title
VII’s
prohibition
against
discrimination
based
on
sex
did
not
include
sexual
orientation
discrimination.
The
Second
Circuit
Court
of
Appeals,
covering
Connecticut,
New
York,
and
Vermont,
gave
an
opposite
ruling
in
Altitude
Express,
Inc.
v.
Zarda.
In
that
case,
Zarda,
a
gay
male
skydive
instructor,
alleged
that
he
was
terminated
because
he
was
openly
gay
and
referenced
his
sexual
orientation
to
clients
and
coworkers.
The
Second
Circuit
concluded
that
an
employer
cannot
consider
or
define
a
person’s
sexual
orientation
without
considering
the
person’s
sex.
Thus,
sexual
orientation
discrimination
is
discrimination
because
of
sex,
Continue Reading...
|
|
U.S. Department of Labor Issues Regulations Explaining Paid Sick Leave and Expanded FMLA Benefits Under FFCRA
|
04/01/2020
|
By: Teresa Shulda
|
Today,
the
U.S.
Department
of
Labor
issued
its
regulations
to
implement
the
Emergency
Paid
Sick
Leave
Act
and
Emergency
Family
and
Medical
Leave
Expansion
Act,
both of
which
are
part
of
the
Families
First
Coronavirus
Response
Act
(FFCRA
or
Act).
The
FFCRA,
which
became
law
on
March
18,
went
into
effect
today,
April
1.
The
FFCRA
The
FFCRA
requires
certain
employers
with
fewer
than
500
employees
to
provide
their
employees
with
paid
sick
leave
and
expanded
family
and
medical
leave
for
specified
reasons
related
to
COVID-19,
which
are
subject
to
a
100%
refundable
tax
credit.
Generally,
employers
covered
under
the
Act
must
provide
employees
up
to
two
weeks
(80
hours
or
a
part-time
employee’s
two-week
equivalent)
of
paid
sick
leave,
at
full
pay
(up
to
a
$511
per
day)
if
they
are
subject
to
a
quarantine
order
related
to
COVID-19,
they
have
been
advised
by
a
healthcare
provider
to
self-quarantine
related
to
COVID-19,
or
are
experiencing
symptoms
related
to
COVID-19.
The
Act
also
provides
for
up
to
two
weeks
of
paid
sick
leave
at
two-thirds
pay
(up
to
$200
per
day)
to
employees
if
they
are
caring
for
an
individual
who
is
subject
to
a
quarantine
order
or
has
been
advised
by
a
healthcare
provider
to
self-quarantine,
and
up
to
12
weeks
of
paid
sick
leave
Continue Reading...
|
|
Employer Tips for Managing COVID-19
|
03/12/2020
|
By: Teresa Shulda
|
Now
that
positive
cases
of
the
coronavirus
(COVID-19)
have
been
confirmed
in
Kansas
and
Missouri
and
the
WHO
has
declared
the
outbreak
a
pandemic,
local
employers
must
act
quickly
to
create
plans
to
prevent
the
spread
of
the
virus
in
the
workplace,
educate
employees
about
how
to
reduce
the
risk
of
exposure
and
transmission,
and
consider
their
obligations
under
the
FMLA
and
ADA.
The
following
are
important
tips
and
resources
as
employers
prepare
for
the
potential
spread
of
COVID-19.
Promote
a
Safe
Work
Environment
Employers
have
a
legal
duty
to
maintain
a
safe
workplace.
For
example,
the
Occupational
Safety
and
Health
Act
requires
an
employer
to
provide
a
workplace
that
is
“free
from
recognized
hazards
that
are
causing
or
are
likely
to
cause
death
or
serious
physical
harm
to
[its]
employees.”
Recently,
the
Occupational
and
Safety
Administration
(OSHA)
indicated
that
an
employer
has
a
duty
under
this
Act
to
take
steps
to
prevent
occupational
exposure
to
COVID-19.
That
means
employers
should
take
feasible
measures
to
reduce
the
likelihood
that
employees
will
be
exposed
to
COVID-19.
Importantly,
employers
who
allow
employees
to
wear
respirators
should
provide
disclosure
information
required
by
OSHA,
and
those
who
require
employees
to
wear
respirators
should
follow
OSHA
rules
for
implementing
a
respiratory
protection
program,
including
the
proper
fit-testing
procedures
and
Continue Reading...
|
|
A Christmas Story: Tales of Woe and Joy from the Holiday Party
|
01/02/2020
|
By: Teresa Shulda
|
Now
that
the
holidays
are
over,
we
can
look
back
on
a
year
of
accomplishments
and
success.
Or,
for
some,
we
can
start
the
new
year
with
HR headaches
resulting
from
the
annual
holiday
party.
The
Naughty
List
Holiday
parties
are
ripe
for
mischief
and
mistakes.
The
following
are
true
stories
of
office
parties
that
went
horribly
awry.
- A
California
bank
branch
held
an
annual
holiday
party
at
a
local
restaurant.
There
were
only
about
15
people
in
attendance,
but
they
included
a
female
bank
teller,
the
teller’s
female
boss,
and
the
boss’
boyfriend
(a
manager
at
a
different
bank
branch).
The
entire
affair,
including
the
alcohol,
was
funded
by
the
bank’s
budget.
The
office
party
officially
ended,
but
the
party-goers
continued
their
revelries.
But
once
the
bank’s
party
ended,
the
bank
employees
had
to
fund
their
own
cocktails.
The
party
continued
into
the
restaurant
bar
area,
then
moved
to
another
bar
as
the
night
progressed,
and
finally
ended
up
at
the
boss’s
house.
You
can
probably
see
where
this
is
going.
The
teller
ultimately
accused
her
boss
and
the
boss’s
boyfriend
of
sexual
harassment,
and
brought
suit
against
the
bank,
alleging
that
the
bank
should
have
foreseen
the
harassment,
particularly
in
light
of
the
alcoholic
drinks
that
were
provided
at
the
holiday
party.
The
trial
court
ultimately
found
the
bank
wasn’t
liable,
largely
because
the
office
party
ended,
and
the
drinking
that
continued
wasn’t
on
Continue Reading...
|
|
USSC to Hear Trio of LGBTQ Cases
|
05/01/2019
|
By: Teresa Shulda
|
The
Supreme
Court
recently
agreed
to
hear
three
cases
that
address
whether
Title
VII’s
protections
against
sex
discrimination
extend
to
discrimination
on
the
basis
of
an
employee’s
sexual
orientation
and
gender
identity.
Lower
courts
have
struggled
with
the
question
of
whether
“discrimination
on
the
basis
of
sex”
could
include
protections
for
LGBTQ
workers,
resulting
in
a
split
among
the
federal
courts
of
appeal. The
Supreme
Court
will
now
have
the
opportunity
to
resolve
the
question
once
and
for
all. Two
of
the
cases
involve
gay
employees
who
both
claim
that
they
were
fired
because
of
their
sexual
orientation. In
one
case,
Zarda
v.
Altitude
Express,
the
Scond
Circuit
Court
of
Appeals
(covering
northeastern
states)
ruled
that
Title
VII
extended
to
sexual
orientation
discrimination.
In
the
other
case,
Bostock
v.
Clayton
County,
the
Eleventh
Circuit
Court
of
Appeals
(covering
southern
states)
ruled
that
Title
VII
did
not
protect
employees
from
sexual
orientation
discrimination. The
third
case
the
Supreme
Court
will
hear
involves
a
transgender
employee.
In
R.G.
&
G.R.
Harris
Funeral
Homes
Inc.
v.
EEOC,
a
funeral
home
owner
terminated
an
employee
because
of
her
transgender
status. The
business
owner
relied
on
the
Religious
Freedom
Restoration
Act
to
argue
that
his
personal
religious
beliefs
supported
his
termination
decision
and
RFRA
provides
a
defense
for
employers
with
sincerely
held
religious
beliefs. The
Sixth
Circuit
Court
of
Appeals
(covering
midwestern
states,
but
not
Kansas),
ruled
against
the
business
owner
and
found
that
Title
VII
protects
transgender
employees
and
RFRA
did
Continue Reading...
|
|
Real Life Is Stranger Than Fiction
|
12/28/2018
|
By: Teresa Shulda
|
Employment
attorneys
always
tell
their
colleagues
that
the
best
practice
area
is
undoubtedly
employment
law.
HR
professionals
probably
feel
much
the
same
way.
Every
personnel
situation
is
different,
it’s
never
boring,
and
just
when
you
think
you’ve
seen
it
all,
you
hear
about
another
wild
day
in
the
workplace.
2018
was
no
different,
and
the
following
real-life
cases
prove
it.
Georgia
man
gets
a
kick
in
the
butt(dial)
James
Stephens
worked
as
the
Fiscal
Officer
for
the
Georgia
Subsequent
Injury
Trust
Fund,
a
state
agency.
After
work
one
day,
Stephens’
boss,
Michael
Coan,
called
Stephens
at
home
on
his
cell
phone
and
they
talked
about
work
for
a
while.
Stephens
hung
up,
put
his
cell
phone
in
his
pocket,
and
went
on
a
rant
to
his
wife
for
12
minutes
about
Coan.
Unfortunately
for
Stephens,
he
had
inadvertently
“pocket-dialed”
Coan,
who
heard
the
whole
rant.
When
Stephens
went
to
work
in
the
morning,
Coan
gave
him
a
choice
–
resign
or
be
fired.
Stephens
resigned,
then
he
and
his
wife
sued
Coan
under
Georgia’s
eavesdropping
law
and
for
invading
the
Stephens’
right
to
privacy.
The
Stephens
claim
that
Coan
had
a
legal
obligation
to
hang
up
when
he
realized
the
call
was
inadvertent
rather
than
listen
in
to
the
Stephens’
private
conversation.
Coan
filed
a
motion
to
dismiss
the
lawsuit,
arguing
that
Coan
was
immune
from
the
suit
because
he
was
acting
in
his
official
capacity
as
a
state
supervisor
and
had
a
right
to
listen
to
the
conversation
of
a
subordinate
employee
Continue Reading...
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|
Governor Colyer Gives Paid Leave to State Workers
|
12/03/2018
|
By: Teresa Shulda
|
On
November
21,
2018,
outgoing
Governor
Colyer
issued
Executive
Order
18-19,
which
provides
paid
parental
leave
for
over
17,000
Kansas
state
employees.
Under
this
order,
all
state
employees
in
the
Executive
Branch
under
the
governor’s
jurisdiction
will
be
eligible
to
receive
paid
leave
equal
to
100
percent
of
their
regular
salary
following
the
birth
or
adoption
of
a
child.
Primary
caregivers
can
receive
up
to
six
weeks
of
paid
leave,
while
secondary
caregivers
can
receive
up
to
three
weeks.
As
of
right
now,
who
constitutes
a
primary
versus
secondary
caregiver
is
not
defined,
but
the
Office
of
Personnel
Services
has
been
charged
with
establishing
guidelines
and
leave
codes
to
implement
the
order.
Governor
Colyer
said
the
order
reflected
“how
important
our
children
are
to
us
and
how
much
we
value
family
here
in
Kansas,”
and
he
encouraged
other
statewide
elected
officials
and
agencies
to
adopt
similar
policies
for
their
employees.
Kansas
joins
14
other
states
and
the
District
of
Columbia
in
providing
paid
parental
leave
to
all
or
some
of
the
state’s
workforce.
|
|
Kansas Agencies Ban-the-Box
|
06/11/2018
|
By: Teresa Shulda
|
A
growing
number
of
employers
have
voluntarily
decided
to
eliminate
questions
about
criminal
convictions
and
arrests
from
their
employment
applications.
Koch
Industries,
a
Kansas-based
company
and
one
of
the
country’s
largest
private
employers,
has
been
on
the
leading
edge
of
the
movement.
Now,
Kansas
Governor
Jeff
Colyer
is
joining
the
movement
with
a
recent
executive
order.
What
is
the
“ban-the-box”
movement?
“Ban-the-box”
refers
to
the
box
that
has
historically
appeared
on
many
job
applications
asking
the
applicant
whether
he
or
she
has
ever
been
arrested
or
convicted
of
a
crime.
The
“ban-the-box”
movement
has
been
an
effort
organized
by
civil
rights
organizations
composed
primarily
of
formerly
incarcerated
people
and
their
families.
Statistics
show
that
lack
of
employment
makes
it
more
likely
that
ex-offenders
will
re-offend,
so
those
supporting
this
movement
argue
that
employing
more
individuals
with
criminal
convictions
will
have
a
positive
impact
on
society.
In
essence,
supporters
of
the
movement
advocate
for
enabling
people
with
prior
convictions
to
show
their
qualifications
for
a
position
before
being
automatically
excluded
from
the
job
based
on
their
criminal
record.
Is
it
legal
to
ask
applicants
about
their
criminal
history
on
the
application?
Maybe;
maybe
not.
Currently,
31
states
and
more
than
150
cities
and
counties
have
adopted
laws
or
policies
“banning”
the
box
for
government
positions.
In
other
words,
public-sector
employers
in
these
states
and
cities
cannot
include
inquiries
on
application
forms
that
would
require
the
applicant
to
disclose
arrest
and
conviction
information.
Eleven
states
(California,
Connecticut,
Hawaii,
Illinois,
Massachusetts,
Minnesota,
New
Jersey,
Oregon,
Rhode
Continue Reading...
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|
The Evolution of Title VII and Sex Discrimination
|
03/09/2018
|
By: Teresa Shulda
|
It
seems
as
though
every
few
months
we
need
to
update
our
understanding
of
what
discrimination
“because
of...
sex”
means
under
Title
VII.
Gay
and
lesbian
employees
continue
to
bring
discrimination
claims
against
employers,
arguing
that
Title
VII’s
prohibition
against
discrimination
“because
of...
sex”
extends
to
sexual
orientation
discrimination.
Well,
it’s
time
for
another
update.
Last
month,
the
Second
Circuit
Court
of
Appeals
issued
a
ruling
in
Zarda
v.
Altitude
Express,
Inc.,
finding
that
sexual
orientation
discrimination
is
motivated,
at
least
in
part,
by
sex,
and
is
thus
a
subset
of
prohibited
sex
discrimination
under
Title
VII.
In
Zarda,
the
plaintiff,
a
skydiving
instructor,
claimed
he
was
terminated
due
to
his
failure
to
conform
to
male
sex
stereotypes
solely
because
he
was
gay.
The
plaintiff
did
not
claim
that
he
failed
to
conform
to
a
masculine
look
or
behavior.
Rather,
he
claimed
it
was
simply
the
fact
that
he
was
gay
and
referenced
his
sexual
orientation
to
clients
and
coworkers
that
led
to
his
termination.
The
Zarda
court
recognized
the
long-standing
rule
that
gender-based
stereotyping
can
violate
Title
VII’s
prohibition
on
discrimination
“because
of...
sex.”
For
example,
in
Price
Waterhouse
v.
Hopkins,
a
case
decided
in
1989,
the
U.S.
Supreme
Court
found
in
favor
of
a
female
plaintiff
who
alleged
that
she
was
denied
partnership,
because
she
did
not
fit
the
male
partners’
idea
of
what
a
female
employee
should
look
and
act
like.
Male
partners
instructed
her
that
she
would
have
a
better
Continue Reading...
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|
Ho Ho Oh No! HR Pitfalls at the Annual Holiday Party
|
12/11/2017
|
By: Teresa Shulda
|
The
Naughty
List
Santa’s
list
wouldn’t
be
complete
if
it
didn’t
have
a
few
coal
recipients.
The
following
are
true
stories
of
office
parties
that
went
horribly
awry.
- A
California
bank
branch
held
an
annual
holiday
party
at
a
local
restaurant.
There
were
only
about
15
people
in
attendance,
but
they
included
a
female
bank
teller,
the
teller’s
female
boss,
and
the
boss’
boyfriend
(a
manager
at
a
different
bank
branch).
The
entire
affair,
including
the
alcohol,
was
funded
by
the
bank’s
budget.
The
office
party
officially
ended,
but
the
party-goers
continued
their
revelries.
But
once
the
bank’s
party
ended,
the
bank
employees
had
to
fund
their
own
cocktails.
The
party
continued
into
the
restaurant
bar
area,
then
moved
to
another
bar
as
the
night
progressed,
and
finally
ended
up
at
the
boss’s
house.
You
can
probably
see
where
this
is
going.
The
teller
ultimately
accused
her
boss
and
the
boss’s
boyfriend
of
sexual
harassment,
and
brought
suit
against
the
bank,
alleging
that
the
bank
should
have
foreseen
the
harassment,
particularly
in
light
of
the
alcoholic
drinks
that
were
provided
at
the
holiday
party.
The
trial
court
ultimately
found
the
bank
wasn’t
liable,
largely
because
the
office
party
ended,
and
the
drinking
that
continued
wasn’t
on
the
bank’s
dime.
- A
restaurant
in
New
Hampshire
employed
a
head
chef
who
trended
toward
the
vulgar
–
on
a
daily
basis.
The
other
employees
in
the
kitchen
had
just
about
had
it
when
the
restaurant
held
an
Continue Reading...
|
|
Tricks at Work Are No Treat for Employers
|
10/22/2017
|
By: Teresa Shulda
|
Halloween
is
a
lot
of
fun
for
both
kids
and
adults.
When
else
can
we
wear
inappropriate
costumes,
gorge
on
unlimited
candy,
and
create
a
“Walking
Dead”
display
in
our
front
yard?
But
when
the
spectral
mist
of
Halloween
creeps
into
the
workplace,
things
can
get
really
scary.
Here
are
some
real-life
Halloween
work-place
mishaps
that
left
employers
haunted:
- A
retail
store
put
up
a
notice
encouraging
employees
to
come
to
work
in
costume
on
Halloween.
About
half
participated,
while
the
other
half
showed
up
in
their
regular
clothes.
Donna
Meraz
was
one
of
the
employees
who
didn’t
wear
a
costume,
claiming
that
doing
so
conflicted
with
her
religious
beliefs.
Later
that
year
when
Meraz’s
work
hours
were
reduced,
she
sued
the
company
alleging
she
was
retaliated
against
for
her
religious
beliefs
after
refusing
to
work
in
costume
on
Halloween.
The
court
gave
the
employer
a
treat,
dismissing
Meraz’s
retaliation
claim.
- An
employee
brought
a
retaliation
claim
against
her
employer,
alleging
she
was
fired
after
complaining
about
a
male
supervisor
who
constantly
made
suggestive
remarks
about
female
employees.
On
one
occasion,
a
woman
wore
a
cat
costume
to
work
on
Halloween
and
the
male
supervisor
allegedly
said
that
he
“liked
her
tail.”
Unfortunately,
the
male
supervisor
got
up
to
other
hijinks
like
this
and
the
court
ordered
the
case
to
a
jury.
- Several
black
and
Hispanic
employees
of
a
city
parks
department
brought
class
action
Continue Reading...
|
|
Severance Policy Not Applicable to Employees Who Suffered No Job Loss
|
12/16/2016
|
By: Teresa Shulda
|
Some
employers
have
written
policies
that
provide
severance
pay
when
employees
lose
their
jobs
through
actions
like
job
eliminations
or
reductions
in
force.
So
what
happens
when
employees
lose
their
job
with
the
original
employer,
pursuant
to
a
consolidation
or
plant
sale,
but
that
employer
makes
arrangements
for
them
to
transfer
to
comparable
jobs
with
the
new
employer
with
no
lost
work
time?
The
Kansas
Court
of
Appeals
recently
ruled
that
City
of
Topeka
employees
whose
employment
was
transferred
to
Shawnee
County
did
not
experience
a
“lay-off
due
to
work
or
job
elimination,”
and
thus
were
not
eligible
for
severance
pay
under
the
City’s
severance
pay
policy.
Background
The
terms
of
employment
for
workers
in
Topeka’s
parks
and
recreation
department
were
governed
by
the
city’s
personnel
code.
One
provision
of
the
personnel
code
addressed
severance
pay,
setting
forth
who
is
eligible
for
it,
under
what
circumstances,
and
how
much.
In
2011,
the
city
decided
to
consolidate
its
parks
and
rec
department
with
Shawnee
County’s
department.
The
city
and
county
entered
into
several
“consolidation
contracts”
that
set
forth
the
terms
of
the
consolidation.
Moreover,
the
city’s
employees
didn’t
need
to
worry
about
their
jobs
because
the
city
was
able
to
negotiate
an
assurance
with
the
county
that
all
city
employees
who
wanted
to
could
transfer
to
county
positions
at
comparable
pay.
The
city
was
able
to
negotiate
other
provisions
for
its
employees,
including:
- They
would
be
able
to
receive
severance
pay
if
the
county
fired
them
within
the
first
three
years
after
Continue Reading...
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|
Ho Ho Oh No! HR Pitfalls at the Annual Holiday Party
|
12/09/2016
|
By: Teresa Shulda
|
As
the
outdoor
air
cools
and
becomes
crisp,
office-wide
relief
becomes
palpable
as
businesses
finally
stop
blasting
the
office’s
AC-on-steroids
system.
Ugly
holiday
sweaters
that
violate
all
fashion
sensibilities,
if
not
office
dress
codes,
start
to
appear
on
the
regular.
And
all
are
delighted
by
that
one
co-worker
in
the
open
cubicle
area
who
plays
the
24-hour
holiday
music
radio
station.
It’s
that
time
of
year
again!
Time
for
holiday
cheer
and
avoiding
the
pitfalls
that
can
come
from
the
annual
holiday
office
party.
The
Naughty
List
Santa’s
list
wouldn’t
be
complete
if
it
didn’t
have
a
few
coal
recipients.
The
following
are
true
stories
of
office
parties
that
went
horribly
awry.
- A
California
bank
branch
held
an
annual
holiday
party
at
a
local
restaurant.
There
were
only
about
15
people
in
attendance,
but
they
included
a
female
bank
teller,
the
teller’s
female
boss,
and
the
boss’
boyfriend
(a
manager
at
a
different
bank
branch).
The
entire
affair,
including
the
alcohol,
was
funded
by
the
bank’s
budget.
The
office
party
officially
ended,
but
the
party-goers
continued
their
revelries.
But
once
the
bank’s
party
ended,
the
bank
employees
had
to
fund
their
own
cocktails.
The
party
continued
into
the
restaurant
bar
area,
then
moved
to
another
bar
as
the
night
progressed,
and
finally
ended
up
at
the
boss’s
house.
You
can
probably
see
where
this
is
going.
The
teller
ultimately
accused
her
boss
and
the
boss’s
boyfriend
of
sexual
harassment,
and
brought
suit
against
the
bank,
alleging
that
the
bank
Continue Reading...
|
|
NLRB Strikes Down Employer’s “Positivity Policy”
|
05/15/2016
|
By: Teresa Shulda
|
“Come
to
work
with
a
positive
attitude,
and
promote
a
positive
work
environment.”
Most
employers
would
look
at
that
statement
and
think
“that
makes
sense.”
But
if
employers
incorporate
this
type
of
broad
statement
into
their
employee
handbooks,
they
might
run
afoul
of
the
National
Labor
Relations
Act
(“NLRA”).
Or
so
says
the
National
Labor
Relations
Board
(“NLRB”)
in
its
recent
decision
striking
down
yet
another
handbook
policy
as
a
violation
of
an
employee’s
right
to
engage
in
“concerted
protected
activity”
under
the
NLRA.
T-Mobile’s
“Positivity
Policy”
The
General
Counsel
of
the
NLRB
filed
several
complaints
against
T-Mobile,
alleging
that
many
of
the
company’s
handbook
policies
violated
the
NLRA
because
they
were
overbroad
and
thus,
employees
could
“reasonably
construe
the
language
[of
the
policy]
to
prohibit
Section
7
rights”
under
the
NLRA.
That
section
of
the
NLRA
guarantees
employees
the
right
to
engage
in
“concerted
protected
activity;”
which
is
activity
by
two
or
more
employees
that
addresses
and
is
intended
to
improve
workplace
terms
and
conditions.
So,
any
workplace
rule
or
policy
that
interferes
with
that
right
violates
the
NLRA.
Among
the
several
policies
the
General
Counsel
took
issue
with
was
T-Mobile’s
“positivity
policy”
under
the
“Workplace
Conduct”
provision
of
the
company’s
handbook.
That
policy
stated:
"The
Company
expects
all
employees
to
behave
in
a
professional
manner
that
promotes
efficiency,
productivity,
and
cooperation.
Employees
are
expected
to
maintain
a
positive
work
environment
by
communicating
in
a
manner
that
is
conducive
to
effective
working
relationships
with
internal
and
external
customers,
clients,
co-workers,
and
management."
|
|
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part IV
|
04/20/2016
|
By: Teresa Shulda
|
What
should
HR
be
doing
now?
Given
the
rapid
pace
of
changing
and
polarizing
political,
legislative,
and
individual
viewpoints
on
LGBT
rights,
it’s
reasonable
to
conclude
that
the
EEOC
has
chosen
now
as
the
right
time
to
test
the
courts
on
whether
Title
VII
includes
sexual
orientation
discrimination.
And,
if
the
federal
legislature
does
not
pass
a
law
specifically
addressing
sexual
orientation
discrimination,
it’s
equally
reasonable
to
anticipate
the
Baxley,
Boone,
or
a
similar
case
will
reach
the
U.S.
Supreme
Court
in
the
near
future
for
a
definitive
decision
on
the
issue.
So
what
should
you
be
doing
in
the
meantime?
First,
check
your
company’s
equal
employment
opportunity
policy.
Many
private
employers
have
voluntarily
included
sexual
orientation
and
gender
identity
as
protected
categories
within
anti-discrimination
and
harassment
policies.
If
your
own
policies
and
procedures
prohibit
discrimination
against
LGBT
employees,
they
should
be
enforced
in
the
same
manner
as
other
protected
categories.
Second,
keep
track
of
developments
in
the
law
so
that
you
know
how
different
states
and
cities
(where
your
company
might
operate)
approach
sexual
orientation
discrimination.
For
example,
though
the
Kansas
Act
Against
Discrimination
does
not
include
sexual
orientation
as
among
the
protected
categories,
two
cities,
Lawrence
and
Roeland
Park,
have
passed
ordinances
prohibiting
discrimination
on
the
basis
of
sexual
orientation
and
gender
identity.
Moreover,
22
states
and
the
District
of
Columbia
have
specifically
included
sexual
orientation
within
their
state
anti-discrimination
laws;
19
of
those
states
and
D.C.
include
gender
identity
as
well.
|
|
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part III
|
04/13/2016
|
By: Teresa Shulda
|
So
what’s
different
about
the
2016
lawsuits?
In
the
recent
lawsuits,
the
EEOC
seeks
to
extend
its
reasoning
in Baldwin (which
was
limited
to
the
federal
employment
context)
to
the
realm
of
private
employment.
In
other
words,
the
EEOC
is
trying
to
get
courts
to
reverse
their
prior
decisions
and
agree
with
the
agency
that
Title
VII
prohibits
sexual
orientation
discrimination.
In EEOC
v.
Scott
Medical
Health
Center,
a
case
filed
in
the
District
Court
for
the
Western
District
of
Pennsylvania,
the
EEOC
claims
the
employer
allowed
a
heterosexual
male
manager
to
subject
a
gale
male
employee,
Dale
Baxley,
to
a
sexually
hostile
work
environment.
The
lawsuit
alleges
that
the
manager
used
anti-gay
epithets
to
refer
to
Baxley,
and,
upon
learning
that
Baxley
was
married,
made
further
derogatory
comments
about
Baxley’s
sex
life
with
his
husband.
In EEOC
v.
Pallet
Companies
d/b/a
IFCO
Systems
NA,
Inc.,
filed
in
the
District
of
Maryland,
the
EEOC
made
similar
allegations
on
behalf
of
a
lesbian
employee,
Yolanda
Boone.
Boone
alleged
that
her
manager
made
frequent
derogatory
comments
directed
at
her
sexual
orientation,
including
saying,
“I
want
to
turn
you
back
into
a
woman,”
“I
want
you
to
like
men
again,”
and
quoting
biblical
passages
that
a
woman
should
not
be
with
a
woman.
According
to
both
lawsuits,
the
employees
filed
internal
complaints
but
nothing
was
done
to
correct
the
managers’
behavior.
Baxley
quit
rather
than
endure
the
continued
harassment
and
claimed
constructive
discharge,
while
Boone
was
fired
shortly
after
making
a
complaint.
|
|
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part II
|
04/06/2016
|
By: Teresa Shulda
|
What
is
the
EEOC’s
position
on
sexual
orientation?
Since
at
least
2013,
the
EEOC
has
taken
the
position
that
Title
VII’s
prohibition
against
discrimination
“based
on
sex”
includes
discrimination
based
on
sexual
orientation.
Starting
that
year,
the
agency
began
accepting
and
investigating
charges
filed
against
private
employers
alleging
sexual
orientation
discrimination.
In
2015,
the
agency
received
1,181
charges
alleging
sexual
orientation
discrimination,
and
was
able
to
resolve
some
of
those
charges
via
voluntary
agreements
yielding
approximately
$3
million
in
monetary
relief
for
employees.
The
EEOC
made
its
position
abundantly
clear
this
past
summer
in
an
administrative
decision
issued
about
one
month
after
the
U.S.
Supreme
Court
made
same-sex
marriage
legal
in
the
landmark Obergefell
v.
Hodges decision.
In
July
2015,
the
EEOC
decided Baldwin
v.
Foxx,
an
administrative
case,
and
concluded
that
a
federal
employer
violates
Title
VII
by
discriminating
against
gay
employees
because
of
their
sexual
orientation.
That
case
involved
a
federal
employee
who
brought
a
sex
discrimination
claim
against
the
Department
of
Transportation.
Baldwin
claimed
he
was
not
selected
for
a
position
because
he
is
gay.
To
support
his
claim,
Baldwin
presented
evidence
that
a
decision-maker
in
the
selection
process
made
several
negative
comments
about
Baldwin’s
sexual
orientation.
Title
VII’s
mandates
regarding
federal
employment
are
parallel
to
the
law’s
requirements
for
private
employers
in
that
sex
discrimination
is
prohibited,
but
sexual
orientation
is
not
mentioned
as
among
the
protected
classes.
But
the
EEOC
found
that
the
existing
Title
VII
protections
against
sex
discrimination
extended
to
sexual
orientation
discrimination.
The
EEOC
stated,
“[s]exual
orientation
discrimination
Continue Reading...
|
|
EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part I
|
03/30/2016
|
By: Teresa Shulda
|
Does
Title
VII
cover
sexual
orientation?
Title
VII
of
the
Civil
Rights
Act
of
1964
(which
applies
employers
with
15
or
more
employees)
prohibits
discrimination
on
the
basis
of
an
employee’s
sex.
The
law
doesn’t
mention
sexual
orientation
as
among
the
protected
categories
and
many
courts,
including
the
10th
Circuit
Court
of
Appeals
(which
covers
Kansas
employers),
have
concluded
that
Title
VII
does
not
in
fact
protect
employees
from
discrimination
on
the
basis
of
their
sexual
orientation.
That
said,
courts
have
concluded
discrimination
“based
on
sex”
includes
harassment
and
adverse
actions
based
on
sex-stereotyping.
In
other
words,
discrimination
against
a
woman
because
she
does
not
conform
to
feminine
or
female-specific
norms
or
stereotypes;
or
against
a
man
because
he
does
not
conform
to
masculine
or
male-specific
norms
or
stereotypes.
This
interpretation
of
Title
VII
has
yielded
legal
success
for
some
transgender
employees.
For
example,
in Smith
v.
City
of
Salem,
the
plaintiff,
a
transgender
firefighter,
alleged
that
a
disciplinary
suspension
was
discrimination
“based
on
sex”
after
coworkers
made
comments
that
Smith’s
appearance
and
mannerisms
weren’t
masculine
enough.
The
City
of
Salem
tried
to
get
the
lawsuit
thrown
out
under
the
argument
that
Title
VII
doesn’t
cover
discrimination
based
on
an
employee’s
transgender
status.
The
lower
court
agreed
with
the
employer.
But
the
6th
Circuit
Court
of
Appeals
(which
covers
Kentucky,
Michigan,
Ohio
and
Tennessee)
reversed,
holding
that
Title
VII
applied
if
Smith
was
discriminated
against
based
on
gender
non-conforming
conduct.
Transgender
employees
have
seen
similar
outcomes
in
lawsuits
brought
in
many
states.
The
key
Continue Reading...
|
|
How Will the Supreme Court's Ruling on Same-Sex Marriage Impact Kansas Employers?
|
08/10/2015
|
By: Teresa Shulda
|
The
Supreme
Court
has
had
a
busy
summer.
Between
ruling
in
favor
of
religious
dress
accommodations
in
EEOC
v.
Abercrombie
and
Fitch,
fashioning
a
new
test
to
apply
in
pregnancy
bias
cases
in
Young
v.
UPS,
and
ensuring
the
viability
of
the
Affordable
Care
Act
in
King
v.
Burwell,
you’d
think
that
the
Supreme
Court
had
given
employers
enough
to
contemplate.
But
the
nine
Justices
waited
until
the
end
of
their
term
to
deliver
one
of
the
most
hotly
anticipated
decisions
all
year
in
Obergefell
v.
Hodges.
By
a
5
to
4
margin,
the
Court
held
that
state
bans
on
same-sex
marriage
are
unconstitutional.
Now,
same
sex
couples
can
legally
wed
in
all
50
states,
and
presumably,
will
be
entitled
to
the
same
state
and
federal
marriage-related
rights
and
benefits
that
opposite-sex
married
couples
enjoy.
But
the
Obergefell
ruling
raises
questions
for
many
employers,
who
are
wondering
what
employment-related
benefits
are
now
required
for
same-sex
couples.
Obergefell
was
not
an
employment
case
and
did
not
directly
address
any
employment
law
issues;
however,
employers
can
expect
to
feel
some
impact
from
the
decision.
Currently,
there
is
no
federal
law
that
prohibits
discrimination
on
the
basis
of
an
employee’s
sexual
orientation
or
gender
identity.
The
50
states
are
a
patchwork
of
varying
anti-discrimination
laws
in
that
regard.
Indeed,
some
states
are
a
patchwork
of
laws
among
cities
within
the
state.
While
some
states
and
cities
prohibit
discrimination
and
harassment
on
the
basis
of
an
employee’s
sexual
orientation,
Continue Reading...
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EEOC Issues Updated Guidance on Pregnancy Discrimination
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07/31/2015
|
By: Teresa Shulda
|
The
EEOC
issued
updated
guidance
with
regard
to
the
agency’s
enforcement
of
discrimination
under
the
Pregnancy
Discrimination
Act
(“PDA”).
You
might
recall
that
the
EEOC
originally
issued
guidance
in
the
summer
of
2014.
In
that
original
guidance,
the
EEOC
took
the
position
that
the
PDA
requires
employers
to
make
accommodations
to
pregnant
workers
in
the
same
manner
that
it
does
to
other
similarly
situated
workers.
Thus,
if
an
employer
had
a
light-duty
program
it
could
not
exclude
pregnant
workers
from
that
program,
even
if
the
employer
historically
reserved
light-duty
positions
for
certain
categories
of
employees,
such
as
those
injured
on
the
job.
This
year,
the
Supreme
Court
issued
its
decision
in
Young
v.
UPS,
which
addressed
some
of
the
same
issues
the
EEOC
guidance
attempted
to
clarify.
In
that
case,
Peggy
Young
was
a
delivery
driver
for
UPS.
When
she
became
pregnant,
her
doctor
placed
her
on
lifting
restrictions
which
would
interfere
with
her
ability
to
do
her
job,
so
Young
requested
light
duty
from
UPS.
UPS
only
provided
light-duty
work
for
certain
categories
of
employees
–
those
injured
on
the
job,
those
with
a
disability,
and
those
who
lost
their
federal
driving
certifications.
Since
pregnancy
didn’t
fall
within
any
of
those
three
categories,
UPS
denied
Young’s
light-duty
request
and
place
her
on
leave
without
pay
or
benefits.
Young
sued
under
the
PDA,
arguing
that
UPS’s
actions
constituted
sex
discrimination
based
on
her
pregnancy.
Young
cited
to
the
provision
of
the
PDA
that
requires
employers
to
treat
pregnant
women
the
same
as
Continue Reading...
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Make Sure You're Not Singing the "Summertime Blues"
|
05/31/2015
|
By: Teresa Shulda
|
“Itsy
Bitsy
Teenie
Weenie
Yellow
Polkadot
Bikini”
Unless
you’re
a
lifeguard,
a
swim
suit
is
almost
never
proper
attire
in
the
workplace. But
bikinis
are
usually
the
least
of
your
worries
when
it
comes
summertime
dress-code
rule
breakers. Some
employees
may
think
warmer
weather
justifies
tank
tops,
shorts,
and
t-shirts
in
the
office. If
you’re
wondering
whether
you
should
crack
down
on
the
employee
who’s
wearing
the
very-nice-pair-of-bejeweled-leather-but-still-flip-flops,
the
first
step
is
to
check
your
company’s
dress
code.
Dress
codes
should
be
structured
around
the
necessities
of
your
operation,
and
grounded
in
legitimate
business
purposes. For
example,
flip
flops
–
no
matter
how
nice
–
could
pose
a
safety
hazard
in
a
workplace
with
dangerous
machinery. And
shorts
and
t-shirts
may
not
fit
the
corporate
business
image
that
your
company
wants
to
project
with
its
customer-facing
positions. But
probably
most
important,
enforce
your
dress
codes
evenly. You
don’t
want
to
zero
in
on
a
female
employee’s
short
shorts
and
issue
discipline,
but
then
ignore
the
male
employee’s
“My
Co-Workers
Are
Idiots”
t-shirt
logo.
“Vacation”
The
summer
typically
brings
an
avalanche
of
vacation
requests,
but
you
still
have
to
run
your
business. So
how
can
you
ensure
that
your
entire
workforce
doesn’t
suddenly
come
down
with
the
flu
on
July
3? There’s
no
magic
bullet,
but
there
are
several
things
you
can
do
to
try
to
curb
absenteeism
during
the
summer,
and
all
year
round.
First,
make
sure
your
attendance
policy
is
clear
and
precise. It
should
spell
out
exactly
when
employees
can
take
excused
absences
(e.g.,
vacation,
sick
leave,
or
earned
time
off),
and
when
Continue Reading...
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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